EB-2 NIW Green Card:
Employment-Based, Second Preference, National Interest Waiver
Since 1990, the Immigration and Nationality Act (INA) has provided that a person of exceptional ability may obtain a waiver of the job offer requirement if USCIS deems such waiver to be in the “national interest”
This National Interest Waiver (NIW) is one of the few categories that allows foreign nationals to apply for a green card without an employer as their sponsor.
The waiver is available under the second preference employment-based (EB-2) category, which is available for immigrants with advanced degrees or who are considered individuals of exceptional ability in science, art, or business. This means that in order to qualify for a national interest waiver, the foreign national must first qualify for an EB2 visa.
In addition to qualifying for an EB2 visa, under the Dhanasar standards, an NIW applicant must demonstrate the following three criteria:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well-positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category.
The burden to establish that exemption from or waiver of job offer will be in the national interest rests with the applicant. Each case is adjudicated on its own merits, and the chance of success depends largely on the way the case is presented. It is important that evidence is relevant and well-presented, and that the argument is made persuasively.
No Employer or Job Offer Required
The national interest waiver allows the immigrant to self-petition for their own visa. This is an attractive option to may foreign nationals that have extensive education and work accolades and may not want to be tied to the same employer.
Skip the PERM Process
For an ordinary EB2 case, a U.S. employer would need to undergo the “PERM” process to obtain a labor certificate. The process to obtain the Labor Certificate can be long and time-consuming and the Department of Labor must agree that there are no American workers who can fill the position based on fair recruitment efforts.
Compared to other employment-related immigration matters, the EB-2 NIW can be a simpler process because you are skipping the labor certification portion.
- Prepare supporting documents
- File Form I-140
- Receive RFE
- Final Decision
However, simpler does not mean easier. The foreign national must prove that they qualify for both EB-2 status and the waiver.
Spouse and Children
If your I-140 petition is approved, your spouse and children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.
WE CAN HELP!
Our experienced immigration attorneys can help to ensure that you are properly presenting your case and making the correct arguments. Remember, the burden is on you the applicant to prove you have unique and exceptional skills, experience, and knowledge.
The experienced immigration attorneys at The Scott Law Firm can help you
to determine your EB2 NIW eligibility, collect and organize all supporting
documents, and prepare and submit the application.
We can also help you file other immigration petitions while your application is pending.
To find out if you qualify for an EB2 NIW or your immigration options in general, contact our experienced immigration attorneys today!
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